Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 2314 (RAJ)

Abdul Rashid v. State

2012-12-14

NARENDRA KUMAR JAIN, R.S.CHAUHAN

body2012
Hon'ble JAIN, Actg. C.J.—Heard finally. 2. This intra court appeal is directed against the order of Single Bench dated 12.3.2003 whereby SBCWP No. 4316/2001 filed by the petitioner/ appellant has been dismissed. 3. Briefly stated the facts of the case are that the petitioner filed a writ petition before the Single Bench with a prayer that the respondent may be directed to regularize the services of the petitioner on the post of Tracer with effect from 28.5.1980. It was averred in the writ petition that the petitioner earlier filed SBCWP No.191/2001, which was decided by this Court on 17.1.2001 with a direction to the petitioner to make a representation to the Government in the light of Notification of April, 1981 with a request to decide the same in accordance with law. If the representation is made within one month by the petitioner, the State Government to virtually consider the said representation. 4. The petitioner in his writ petition further pleaded that he made a representation, which was rejected vide order dated 09.11.1984,the representations dated 01.12.1984, 06.3.1985 and 20.5.1985 were again made but the same were not considered and decided. The petitioner again moved representation dated 27.5.1986 which was again rejected vide order dated 26.12.1986. The petitioner further made representation before the respondent, which was rejected vide order dated 29.6.2000. Thereafter, he preferred a writ petition which was dismissed. The representation filed by the petitioner, in pursuance of order of this Court, has also been rejected, therefore, the present writ petition has been filed. 5. The petitioner further pleaded that he was initially appointed on the post of Upholster vide order dated 16.5.1978 in the pay scale of 295-500, he was declared surplus vide order dated 07.1.1980, he was relieved on 09.1.1980, he was absorbed vide order dated 15.9.1981 in the lower pay scale of 250-360, whereas he should have been absorbed in the same pay scale i.e. 295-500, therefore, his case should be considered and he may be absorbed in the pay scale of 295-500 with effect from 15.9.1981. 6. 6. The respondents, in their reply to writ petition, submitted that the petitioner, at the time of declaring surplus, was only 9th Class and was not eligible for the post of Tracer in P.W.D. and as per request made by the petitioner that he may be absorbed on the lower scale post of Ferroman only at his choice place, i.e. Jodhpur, he was absorbed and posted at Jodhpur. A copy of the letter dated 09.4.2001 has been placed on record as Annexure R/1. 7. Learned Single Judge vide its impugned judgment has dismissed the writ petition. 8. The submission of learned counsel for the petitioner is that the petitioner was initially appointed and declared surplus in the pay scale of 295-500, therefore, he could not have been absorbed in the lower pay scale of 250-360. In support of her submission, learned counsel has relied upon the judgment of this Court in, “Chief Engineer, Ground, Water Department, Jodhpur vs. Raghuveer Dayal & Ors”, DB SAW No. 757/2001, decided on 14.1.2002, wherein it was held that the surplus employee cannot be reduced in rank nor his pay scale can be reduced when the like post in the same pay scale is available in the Department where he is absorbed. 9. So far as delay in filing the representation and writ petition is concerned, learned counsel for the petitioner/appellant submitted that it is a case of infringement of fundamental right, therefore, delay in filing appeal should not come in the way of the petitioner. In support of this submission, learned counsel relied upon the judgment in Arun Kumar Chatterjee vs. South Eastern Railway and Ors., reported in (1985) 2 SCC 451 . 10. Learned counsel for the respondent supported the judgment of Single Bench and submitted that from Annex/2 dated 11.5.2001, whereby the representation of the petitioner/appellant was rejected, it is clear that petitioner was not eligible to be absorbed on the post of Tracer as he was only 9th Class pass, therefore, he himself made a request that he may be absorbed in the lower pay scale on the post of Ferroman at a particular place i.e. Jodhpur. He also submitted that the petitioner was absorbed in the year 1981, whereas, the first representation was filed in the year 1983 which was rejected in the year 1984 thereafter another representation was rejected in the year 1986 but the petitioner continuously made representations. He also submitted that the petitioner was absorbed in the year 1981, whereas, the first representation was filed in the year 1983 which was rejected in the year 1984 thereafter another representation was rejected in the year 1986 but the petitioner continuously made representations. Against the order rejecting the representation in the year 2001, the writ petitioner approached the High Court by way of writ petition No. 191/2001. He submitted that the writ petition was filed with latches and on this ground it is liable to be dismissed. 11. We have considered the submissions of learned counsel for parties and examined the order passed by the Single Bench and the other documents available on record. So far as facts of the case are concerned, the same are not in dispute that the petitioner was appointed in the pay scale of 295-500 in the year 1978 and he was declared surplus in June, 1980, he was absorbed on the post of Ferroman in the pay scale of 250-360 on 15.9.1981, there is no dispute that the petitioner was absorbed in the lower pay scale. However, from the document placed on record, it is clear that the petitioner was not educationally qualified to be appointed on equivalent post i.e. Tracer, in the year 1981 and further that it was a request of the petitioner himself to appoint him on the post of Ferroman in the pay scale of 250-360 at a particular place i.e. Jodhpur. 12. It is relevant to mention that no rejoinder was filed by the petitioner to the reply filed by the respondents and the facts narrated in the reply remained uncontroverted. 13. That apart, we find from the order of the learned Single Judge that even as per the Rule 7 (4) of the Rajasthan Civil Services (Absorption of Surplus Personnel) Rules, 1969 the surplus personnel who were absorbed on a lower post or on equated posts may be re-absorbed on equivalent posts or on the same posts from which they were declared surplus, provided they have not been confirmed on such posts, if the Absorption Committee is satisfied that hardship had been caused to them by their absorption on the lower posts or on equated posts due to non-availability of vacancies at the time of their first absorption. From the above rule, it is also clear that at the time of absorption the personnel can be absorbed on lower post also. So far as the present case is concerned, it appears that the petitioner was appointed on the post of Ferroman in the pay scale of 250-360 on his own request as he wanted his posting at Jodhpur. 14. That apart, the cause of action arose on 15.9.1981 and admittedly the first representation of the petitioner was rejected on 09.11.1984. The other representations might have been rejected subsequently. It is an admitted fact that the petitioner approached this Court in the year 2001 i.e. after the delay of 20 years. It is also clear that while rejecting the writ petition No. 191/2001 filed by the petitioner on 17.1.2001, no liberty was granted to the petitioner to file fresh writ petition in case the representation is decided against the petitioner. 15. The Hon'ble Apex Court considered the point relating to delay and latches in the writ petition in the State of Harayana & Ors. vs. Ajay Walia (Ms), reported in, (1997) 6 SCC 255 , wherein, the Hon'ble Apex Court had considered the facts of the writ petition which was filed to seek appointment 13 long years after the selection, held, that the writ petition is not entertainable even though the petitioner had been making representations to various authorities during that period. Therefore, repeated representations cannot extend the period of limitation. In these circumstances, we find that the writ petition has been filed with latches. 16. So far as the judgment referred by learned counsel for the petitioner/appellant in Chief Engineer, Ground Water Department, Jodhpur (supra) is concerned, there is no dispute, so far as the position of law is concerned, it is clear that a person cannot be reduced in rank nor the pay scale can be reduced on the same post as available in the department where he is absorbed. However, facts of the present case shows that it was the petitioner who himself wanted posting at Jodhpur on the post of Ferroman, and he was not interested at any other place. Therefore, the judgment of the Division Bench of Chief Engineer, Ground Water Department, Jodhpur (Supra) is distinguishable and not applicable in the facts and circumstances of the present case. 17. Therefore, the judgment of the Division Bench of Chief Engineer, Ground Water Department, Jodhpur (Supra) is distinguishable and not applicable in the facts and circumstances of the present case. 17. The judgment referred by learned counsel for the appellant in Ajay Walia (Supra) is concerned, the Hon'ble Apex Court held that there was no delay in filing the writ petition in the facts and circumstance of that particular case. So far as the present case is concerned, it is admitted fact that the first cause of action arose on 15.9.1981. The first representation of the appellant was rejected in the year 1984 and the writ petition was filed in the year 2001. 18. In view of the above discussion, we find no merit in any of the contention of learned counsel for the appellant. The intra court appeal is meritless and the same is accordingly dismissed with no order as to cost.